M/S. Balaji Ads vs G.C.J. Infrastructure Pvt. Ltd. & ...
2023 Latest Caselaw 2542 Cal/2

                   IN THE HIGH COURT AT CALCUTTA
                   (Ordinary Original Civil Jurisdiction)
                         COMMERCIAL DIVISION


Present:

The Hon'ble Justice Krishna Rao



                                CS 169 of 2017


                                M/s. Balaji Ads
                                    Versus
                   G.C.J. Infrastructure Pvt. Ltd. & Ors.



            Mr. Arik Banerjee
            Mr. Ayan Dutta
            Mr. Rajib Mullick
            Ms. Shreyashi Maity
                                             ... for the plaintiff.



Hearing Concluded On : 29.08.2023

Judgment on             : 06.09.2023

Krishna Rao, J.:


1.

The present suit has been filed by the Plaintiff being CS No. 169 of

2017 praying for a Decree of Rs. 40,54,283/- and alternatively for an

enquiry into damage and decree for such sum as may be found due and

payable upon such enquiry.

2. The plaintiff conducts his business of outdoor advertising and

branding in the name and style of M/s. Balaji Ads.

3. The defendants are developers and connected with the business of

construction. Sometimes in the month of August, the defendant no. 3,

Sri Ashok Jaiswal and defendant no. 4 Radheyshyam Jaiswal (now

since deceased) have approached the plaintiff for branding of their

products. On 26th August, 2014, the plaintiff and the defendants

entered into a contract for display and branding of defendants' project.

4. Being satisfied with the work of the plaintiff, the defendants have

extended the period of contract for another period of one month and

entered into another contract dated 6th September, 2014.

5. On the basis of two contracts entered between the plaintiff and the

defendants, it was understood by both the parties that any further

increase of sites will attract further charges according to the location

and space available.

6. On 15th September, 2014, the plaintiff received a mail from the

defendant no. 3, stating that they have changed the company from

"GCJ Infrastructure Pvt. Ltd. to "GCJ Infraworld LLP", hence the

cheques which were issued by the defendants should not be deposited.

As per the request of the defendant no. 3, the plaintiff has not

deposited the said cheques for realisation of the amount.

7. The plaintiff on and from 26th September, 2014; 30th September, 2014;

7th October, 2014; and on 13th November, 2014 had raised various

bills/invoices nos. BA/359/14-15 for Rs. 22,00,000/-, BA/360/14-15

for Rs. 83,333/-, BA/382/14-15 for Rs. 11,82,000/-, BA/380/14-15

for Rs. 9,48,319/-, BA/460/14-15 for Rs. 2,08,877/- and the said

bills/invoices were duly received by the defendants on 13th November,

2014.

8. Thereafter, the plaintiff has again raised several bills/invoices on and

from 8th October, 2014; 19th November, 2014; and 20th January, 2015,

bearing bills/invoices Nos. BA/413/14-15 to the tune of Rs. 46,854/-;

BA/476/14-15 to the tune of Rs. 4,85,396/-; and BA/599/14-15 for

the period of 27/10/2014-26/11/2014 to the tune of Rs. 31,461/-. The

plaintiff has submitted that these bills/invoices are also duly received

by the defendants on 31st January, 2015.

9. The bills/invoices raised by the plaintiff amounts to Rs. 52,17,701/-,

which is due and payable by the defendants and even after receipt of

the said bills/ invoices, the defendants have not raised any objection.

10. The Learned Counsel appearing on behalf of the plaintiff submits that,

the plaintiff had given several reminders and phone calls to which the

defendants did not respond. The cheques which were issued by the

defendants, were dishonoured by the bank. Thereupon being aggrieved

by the defendants, the plaintiff finding no other alternatives sent an

email dated 18th December, 2014, expressing the non-performance of

their part of the contract due to amounts payable by the defendants.

11. Learned Counsel appearing on behalf of the plaintiff submitted that

the defendants had failed/neglected to reply to the said email.

Therefore, the plaintiff had approached "Outdoor Advertising

Association" vide an email dated 22nd December, 2014, which

apparently is an association of outdoor advertising agencies and

companies at Kolkata to settle the issue between the plaintiff and the

defendants.

12. Learned Counsel appearing for the plaintiff also submits that the last

cheque was drawn by the defendants herein on 23rd April, 2015 and

thereafter several reminders have been sent to the defendants but the

defendants failed to pay the amount to the plaintiff.

13. The defendants entered appearance and had filed written statement.

The specific case of the defendants in their written statement is that the

defendants after receipt of the invoices made payment of Rs. 22 lacs on

the same day by way of cheque and the same was duly accepted by the

plaintiff. It is the further case of the defendant that the defendants

issued another cheque on 18th April, 2015 for Rs. 4,95,000/- being the

full and final settlement of the claim of the plaintiff. It is the further

case of the defendant that the defendant has never received any bill

except the bill for Rs. 22 lacs and other bill for Rs. 4,95,000/- and Rs.

83,000/- and odd amount. The case of the defendants is that the bills

are forged and manufactured and the defendant has no liability to pay

any sum to the plaintiff.

14. The defendants have filed their written statement after extension

granted by this court after imposing cost upon the defendants but after

filing written statement, the defendant has neither come forward for

inspection of documents nor the defendants have disclosed their

documents and accordingly, the Court has fixed the matter for evidence

of plaintiff's witness. The defendants have neither cross examined the

plaintiff's witness nor have adduced any witness on their behalf.

15. To prove the case, the plaintiff has examined the sole proprietor of the

plaintiff company namely Mr. Abhishek Kejriwal. During the

examination, the plaintiff has exhibited total six documents, as "Exhibit

A to Exhibit F".

16. Exhibit "A" and Exhibit "B" are the two contracts dated 26th August,

2013 and 6th September, 2014, executed between the defendants and

the plaintiff, regarding advertising of the defendants' project.

17. Exhibit "C" collectively is the invoice dated 26 September, 2014

regarding display charges of 56 sites as per the annexures attached

with the said invoice for the period from August to September' 2014 for

a total amount of Rs. 22,00,000/-.

18. Exhiubit "D" is the E-mail dated 15th September, 2014 issued by the

defendant No. 4 requesting the plaintiff not to deposit the cheque of

Rs.10 Lacs and to exchange the cheque as the previous cheque was

from GCJ Infrastructure Pvt. Ltd but the defefendants have launched

Vivaanta Kolkata with their newly formed company namely "GCJ

Infraworld LLP". The said documents were relied by the defendant in

their written statement.

19. Exhibit "E" is the E-mail dated 18th December, 2014 sent by the

plaintiff to the defendant informing the defendant about the

dishonoured of the cheques issued by the defendant and requested the

defendant to clear the amount of Rs. 41,06 169/-.

20. Exhibit "F" is the representation issued by the plaintiff to the Outdoor

Advertising Association, Kolkata to help the plaintiff for recovery of the

amount from the defendant.

21. Considering the evidence of the plaintiff and the documents exhibited

by the plaintiff it is found that the plaintiff and the defendants have

entered into two contracts on 26th August, 2014 and 6th September,

2014 for display of advertisement of the defendants and on each of the

contract, the lists of the locations have been indicated. Though the

defendant has neither cross-examined the witness of the plaintiff nor

had adduced witness on their behalf but in the written statement, the

defendants have admitted the contracts entered between the parties.

22. The total claim of the plaintiff was 52,17,701/- out of which the

defendant has paid an amount of Rs. 21,88,000/- and an amount of

Rs. 48,610/- was adjusted from the credit note and now the claim of

the plaintiff is Rs. 29,81,091/- along with interest.

23. The defence raised by the defendants in the written statement that the

defendants had paid the total amount to the plaintiff and the plaintiff

has fabricated the invoices and the defendants have not received any

invoices from the plaintiff. The invoices which the plaintiff is relying

upon and the same has been marked as Exhibit-C Collectively proved

that each and every invoices have been received by the defendants and

there is an endorsement in each of the invoices but the defendants

have not proved their defence raised in the written statement. Even

after receipt of invoices submitted by the plaintiff, the defendant has

not raised any objection and in all invoices seal and signature of the

defendant is appearing which proves that the invoices were received by

the defendant.

24. In view of the above, this Court find that the plaintiff has proved its

case and the plaintiff is entitled to get an amount of Rs. 29,81,091/-

along with interest from the defendants.

25. The plaintiff do get decree of a sum of Rs. 29,81,091/- along with

interest at the rate of 15% per annum from January' 2015 till the

realisation of the said amount.

26. C.S No. 169 of 2017 is thus disposed of. Decree to be drawn

accordingly.

(Krishna Rao, J.)